WEB HOSTING SERVICES AGREEMENT ("WHSA")
Date Last Modified: May 01, 2017
1. Optuno.com provides a month-to-month subscription service that combines website development and hosting along with a variety of marketing solutions. All website plans include month-to-month hosting of the website on Optuno.com owned servers referred to as, “Website Hosting Services”). Subject to the terms and conditions of this Agreement (which includes this and all other applicable Schedules) and during the term of this Agreement, Optuno.com agrees to provide to you the Website Hosting Services you purchase during the sign-up process. Optuno.com reserves the right to amend its Website Hosting Services offerings and to add, delete, suspend or modify the terms and conditions of the Website Hosting Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
2. Fees and Payment Terms.
- Website Hosting Services shall be paid for by valid credit card or other payment method acceptable to Optuno.com. Your annual, monthly, or other recurring periodic payments for Website Hosting Services (the "Hosting Services Fees") shall be automatically charged to the credit card provided by you at the time of your purchase or such other credit card on your account (your “Credit Card”), with such payments being charged in advance, and you hereby agree that Optuno.com is authorized to charge your Credit Card or other selected payment method. Optuno.com, in its sole discretion, shall determine the prices it will charge for the Hosting Services, and Optuno.com may amend such pricing in accordance with terms set forth in the Services Agreement. If you do not agree to any such change, you may terminate this Agreement (or cancel your Website Hosting Services, as applicable) further in accordance with the Agreement, otherwise all such changes will be effective with respect to your account, and you agree that we are authorized to charge your credit card for any new or additional Hosting Services Fees, on the next monthly, annual or other recurring periodic payment cycle (as applicable).
- If your data usage or storage exceeds the amount permitted by the Website Hosting Services package or program you purchase, Optuno.com may, in its sole discretion, upgrade you to the next level package that supports the amount of data usage or storage you have used. If you are upgraded, you will be charged a prorated amount to upgrade your plan for the remainder of your term (the "Prorated Upgrade Payment") and your renewal Hosting Services Fees will be at the rate for such upgraded plan. Any Prorated Upgrade Payment and your new Hosting Service Fees will be automatically charged to your Credit Card, and you hereby agree that Optuno.com is authorized to charge your Credit Card. If you do not agree to any such upgrade, you may terminate this Agreement (or cancel your Hosting Services, as applicable) as provided herein within five (5) days of such upgrade; otherwise all such changes will be effective with respect to your account, and you agree that we are authorized to charge your Credit Card for any Upgrade Payment and your new Hosting Service Fees.
- In addition to recurring service fees, Optuno.com may charge set up fees and other one-time fees for any optional services as set forth on our Website and/or described in this Schedule (collectively "One-time Fees"). Billing for One-time Fees shall be by valid credit card (acceptable to Optuno.com) at the time of purchase at the price set forth on our Website. Your One-time Fees shall be automatically charged to the credit card provided by you (and acceptable to Optuno.com) at the time of your purchase, and you hereby agree that Optuno.com is authorized to charge your credit card. Optuno.com, in its sole discretion, shall determine the prices it will charge for all One- time Fees.
- Optuno.com will charge you a Processing Fee if you terminate or cancel any package prior to the completion of any limited money-back guarantee time period for that package. You authorize Optuno.com, in its sole discretion, to charge the credit card provided by you at the time of your purchase or forward an invoice to you immediately upon any such termination or cancellation of an annual Website Hosting Services package for the amount of the Processing Fee.
- Optuno.com will suspend your account if you request a chargeback on your credit card for automatic charges to your credit card for excess data transfer usage as further addressed below.
3. Term and Termination,
- Term. Your Website Hosting Services shall be either (i) on a month-to-month basis for successive monthly periods or other similar billing cycle, (ii) if you have selected our auto-renew feature, on a year-to-year basis for successive yearly periods, or (iii) if you have not selected our auto-renew feature, for a one-time annual period, all unless either party notifies the other of termination or cancellation in accordance with this Agreement, and subject to the then-current terms and conditions of this Agreement at the time of any renewal of your Web Hosting Services.
- Cancellation. Subject to your obligation to pay any applicable Processing Fees, you may cancel your Website Hosting Services at any time. To cancel your Subscription Service you must notify Optuno.com. Your Website Hosting Services will be canceled as of the expiration of the monthly billing cycle in which your notice was received. Any fees already paid to Optuno.com shall not be reimbursed to you (except for money back guarantees that may apply to your services). Unless terminated earlier as provided herein, this Schedule, and the Agreement if you have no other services with Optuno.com, will be terminated as of the cancellation of your Website Hosting Services.
- Notwithstanding anything to the contrary in the Agreement and without limiting any right or remedy of Optuno.com contained in the Agreement, Optuno.com may suspend or terminate your Website Hosting Services, suspend your access and password, remove your Website Hosting Services from Optuno.com's servers, or remove any content within the Hosting Services, if Optuno.com concludes, in its sole and exclusive discretion, that you (i) have breached, violated, or acted inconsistently with the letter or spirit of the Agreement, including this Addendum, the Services Agreement, the Acceptable Use Policy, or any other applicable Optuno.com term, condition, rule, policy or any applicable law or regulation; (ii) have provided false information as part of your account information; (iii) have failed to keep your account information complete, true, and accurate; (iv) fail to respond to any email communication sent to the email address listed in your account information; (v) are engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services; (vi) are engaged in activities or sales that may damage the rights or reputation of Optuno.com or others; or (vii) engage in any activity, whether or not intentionally, that threatens the stability or security of Optuno.com's network, servers, or other services, in Optuno.com's sole discretion (each "Termination for Cause"). Any Termination for Cause by Optuno.com will take effect immediately, and you expressly agree that you will not have any opportunity to cure. In addition, Optuno.com may terminate your Hosting Services at any time without cause upon notice to you. Your sole and exclusive remedy for such termination of your Hosting Services without cause, that you may qualify for, will be a refund of your Hosting Services Fees for the then current term.
4. Additional Warranty Disclaimers and Limitations of Liability.
- IN ADDITION TO THE OTHER DICLAIMERS AND LIMITATIONS OF LIABILITY OF OPTUNO.COM AS SET FORTH IN THE AGREEMENT, OPTUNO.COM IS ALSO NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR END USERS VIA THE HOSTING SERVICES PROVIDED BY OPTUNO.COM.
- Information obtained by you from the Internet may be inaccurate, offensive or in some cases illegal. Optuno.com has no control over information contained on the Internet and accepts no responsibility for any information that you may receive or transmit via the Internet.
- You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you disseminate or display in connection with your use of the Web Hosting Services or obtain from the Internet.
- You agree that if Optuno.com takes any corrective action under this Agreement in response to your or your end users' actions or failures to act, that corrective action may adversely affect you or your end users and you agree that Optuno.com shall have no liability to you or your end users due to any corrective action taken by Optuno.com.
- You agree that Optuno.com has no obligation to back-up any data related to your website unless Optuno.com expressly agrees otherwise in writing (or has expressly stated so on our Website). You agree that you will regularly back-up your data whether or not Optuno.com agrees to or actually does back-up any data.
- You agree that any backups provided in conjunction with the Website Hosting Services will be allocated to any applicable storage package.
5. Restrictions on Use.
- Optuno.com does not intend to and shall have no obligation to systematically monitor the content that is submitted, stored, distributed or disseminated by you via the Website Hosting Services (the "Content"). Your Content includes content of your end users and/or users of your website. Accordingly, you are responsible for your end users' content and all activities on your website. Optuno.com, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, removal of all or a portion of your Content and suspension and/or termination of your Website Hosting Services, in the event of notice of any possible violation of this Agreement or the AUP by you or your end users. You agree that Optuno.com will have no liability to you or any of your end users due to any corrective action that Optuno.com may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action. You agree to the additional restrictions of use for the ancillary services provided by Optuno.com in conjunction with the Website Hosting Services that are found in other schedules to this Agreement.
- You warrant that your Content does not violate or infringe any copyright, trademark, patent or intellectual or other proprietary property right of any third party or contain any obscene or libelous material or otherwise violate any law or regulation.
- Your use of networks or computing resources provided to Optuno.com by third party providers and made available to you as part of the Website Hosting Services is subject to the respective permission and usage policies of such third parties.
- You agree that you will not exceed the bandwidth or storage space limits applicable to the Website Hosting Services purchased, as set forth on our Website. You agree that if you do exceed either of such limits, Optuno.com, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, deletion of part or all of your content, assessment of additional fees, suspension and/or termination of your Website Hosting Services. You agree that Optuno.com will have no liability to you or any of your end users due to any corrective action that Optuno.com may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action. Furthermore, Optuno.com' hosting servers are not an archive and Optuno.com shall have no liability to you or any other person for loss, damage or destruction of any of your content. You shall at all times, use the space provided to you on Optuno.com' hosting servers exclusively for serving up and deploying your website. You shall not use the space provided to you on Optuno.com' hosting servers in any way which may result in an excessive load on the Optuno.com' equipment and/or network, including but not limited to installing or running web proxies, using your allotted space as online backup or storage, or mirroring mass downloads. Use of the space provided to you on Optuno.com' hosting servers and your services shall be in a manner consistent with the terms and conditions of this Agreement and shall not in any way impair the functioning or operation of Optuno.com' equipment or network. Should your use of the Optuno.com' services result in a violation of this or any other part of this Agreement, in Optuno.com' sole discretion, Optuno.com may suspend your services until the cause of any such violation is determined and resolved.
6. Data Transfer Overage Charges.
- You agree that you will not exceed the data transfer (bandwidth) or storage space limits applicable to the Website Hosting Services purchased, as set forth on our Website. You agree that if you do exceed either of such limits, Optuno.com, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, assessment of additional fees and/or suspension and/or termination of your Website Hosting Services. You agree that Optuno.com will have no liability to you or any of your end users due to any corrective action that Optuno.com may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
- Excess bandwidth usage cannot be purchased by you in advance.
- If you exceed your data transfer limit in the last 24 hours of any given month, Optuno.com will not charge you additional fees so long as the data transfer overage does not exceed 9GB.
7. Other Terms and Conditions.
- The Website Hosting Services we provide under this Agreement may incorporate other products or services that we provide, or products or services provided by third parties with whom we have a business relationship ("Additional Services"). Your use of these Additional Services may be subject to a separate application and/or approval process and you reaching separate agreements with us or with third parties. (For example, if you desire to accept credit card payments through a website you establish via the Website Hosting Services, your relationship with the third-party merchant account provider may be subject to an application and approval process and you reaching a separate agreement with such provider.) Some of these separate agreements may require you to pay fees in addition to the fees that you pay us for the Website Hosting Services. We will strive to let you know when your receipt of Additional Services will require you to enter into a separate agreement, whether with us or with a third-party, and whether such separate agreement will require you to pay additional fees. Additionally, depending on the services you elect to receive, you may be responsible for establishing and maintaining a commercial banking relationship with a financial institution. The terms of any such relationship shall be between you and the financial institution and will not necessarily reflect or incorporate terms of any agreements we may have with the institution. Further, you agree that our third party vendors providing any services as part of the Website Hosting Services, and their successors, are intended third-party beneficiaries under this Agreement and will be entitled to enforce your obligations under this Agreement. Finally, you acknowledge and agree that other Schedules in this Agreement may apply to the various services included in your Website Hosting Services package (for example, Schedules related to domain name registration, email, Private Registration, etc.), and that you have read and you agree to be bound by the additional terms and conditions in those Schedules.
- You agree that any domain name directory, sub-directory, file name or path (e.g. ) that does not resolve to an active web page on your Website being hosted by Optuno.com, may be used by Optuno.com to place a "parking" page, "under construction" page, or other temporary page that may include promotions and advertisements for, and links to, Optuno.com' Website, Optuno.com product and service offerings, third-party Websites, third-party product and service offerings, and/or Internet search engines. You agree that Optuno.com may change the content and/or appearance of, or disable any of these temporary pages at any time, in its sole discretion, and without prior notice.
8. Hosting Service Availability Guarantee.
We guarantee that your Hosting Services will be up and accessible ("Available") 99.9% of the time except for interruptions caused by the following:
- errors caused by you from custom scripting or coding;
- any interruption caused by third party software installed by you;
- corrective actions taken by Optuno.com pursuant to the terms of this Agreement;
- outages that do not affect the appearance of the web site but merely affect access to the web site such as FTP and email;
- Internet frailties;
- periodic scheduled maintenance or repairs that Optuno.com may undertake from time to time; and
- causes beyond the control of Optuno.com or that are not reasonably foreseeable by Optuno.com.
If your Website Hosting Services are not Available 99.9% of the time, your sole and exclusive remedy will be a credit for Hosting Services as specified in this Section. If during any month your Website Hosting Services are not available for a total number of hours you will receive a credit as follows:
- $2 per hour up to 100% of your total monthly fees.
At no point will a refund exceed total monthly hosting fees paid to Optuno.com in any given month. The credit may be used by you only for the renewal of your Website Hosting Services, and is exclusive of any applicable taxes. Each uptime calculation is measured by the uptime for the entire customer base across all hosting systems for Optuno.com. Determination of any service outages shall be solely with Optuno.com
Optuno.com proactively monitors infrastructure uptime through proprietary and/or other licensed commercial systems. The results of these monitoring systems shall provide the sole and exclusive determination of your service uptime. Scheduled maintenance to Optuno.com systems is excluded from the calculation of the uptime as well as events causing downtime that are outside of the control of Optuno.com or are caused by third parties.
9. Content.
You expressly grant to Optuno.com a non-exclusive, worldwide and royalty-free license to cache, copy, display, use, and transmit on and via the Internet the content that is submitted, stored, distributed or disseminated by you using the Website Hosting Services (including content supplied by third parties), including, without limitation, trade or service marks, text, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, software, files, data, works, information and/or other related materials (collectively, the "Content"), in connection with Optuno.com's performance or enforcement of the Agreement and revocable only upon the termination of Webstie Hosting Services. You are solely responsible for providing, updating, uploading and maintaining your website and any and all Content on, within, displayed, linked or transmitted to, from or through your website. Your Content also includes any registered domain names provided by you or registered on behalf of you in connection with the Website Hosting Services. Optuno.com does not intend to and shall have no obligation to systematically monitor the Content. Your Content includes content of the end users of your website. Accordingly, you are responsible for your end users' content and all activities on your website. Optuno.com has absolute discretion to take immediate corrective action, which may include removal of all or a portion of your Content, suspension of your Website Hosting Services, and termination of your Website Hosting Services, if notice of any possible violation of this Agreement (including but not limited to this Addendum, the Service Agreement, the Acceptable Use Policy, etc.) by you or your end users is determined by Optuno.com. You agree that Optuno.com will have no liability to you or any of your end users due to any corrective action that Optuno.com may take and that you will not be entitled to a refund of any fees paid in advance prior to the
corrective action. You agree to the additional restrictions of use for the supplementary services provided by Optuno.com in conjunction with the Website Hosting Services that are found in the Services Agreement.
10. Storage and Security.
At all times, you bear full risk of loss and damage to your Website and all of your Content. You are entirely responsible for maintaining the confidentiality of your password and account information. You agree that you are solely responsible for all acts, omissions, and use under and charges incurred with your account or password or in connection with the Website or any of your Content displayed, linked, transmitted through, or stored on the Optuno.com servers. You are solely responsible for undertaking measures to:
- prevent any loss or damage to your Content;
- maintain independent archival and backup copies of your Content;
- ensure the security, confidentiality and integrity of all your Content transmitted through or stored on Optuno.com servers; and
- ensure the confidentiality of your password.
Optuno.com's servers are not an archive and Optuno.com shall have no liability to you or any other person for loss, damage, or destruction of any of your Content.
Optuno.com shall have no liability to you or any other person for your use of the Hosting Services in violation of these terms.
You agree that Optuno.com has no obligation to back-up any data related to your website. In the event your use of the Hosting Services is terminated, moving your website off of the Optuno.com servers is your responsibility. Optuno.com will not transfer or FTP your website to another provider.
11. Other Services.
You acknowledge and agree that other terms, conditions, and agreements may apply to the various services included in your Website Hosting Services program or package (i.e., terms and conditions related to domain name registration, email, Private Domain Name Registration, etc.), and that you have read and you agree to be bound by such additional terms and conditions.
OPTUNO RESERVES THE RIGHT TO AMEND ANY PORTION OF THE INCORPORATED AGREEMENTS WITH OR WITHOUT NOTICE. IT IS THE CUSTOMER'S RESPONSIBILITY TO REVIEW ALL OPTUNO POLICIES FREQUENTLY TO ENSURE COMPLIANCE.
